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National Assessments
LUXEMBOURG - Questionnaire for Country Assessment
Assessment Period: September 98 to November 99
RESPONDENT (S):
Yves SCHMIDT – CARITAS Refugee Service
AGENCIES/INDIVIDUALS CONSULTED:
Ministry of the Family
Ministry of Justice
Juvenile and Guardianship court
Youth Protection Service
Lawyers and teachers specialising in dossiers relating to children’s rights
DOCUMENTS USED or REFERRED TO:
Recueil de législation "Etrangers" – Service central de législation (‘Foreigners’ statute book – Central legislation department) – Luxembourg 1996
« l’accueil de jour et de nuit des mineurs » - Le guide du professionnel (Receiving children day and night – The professional’s guide)
« rapport sur la Jeunesse luxembourgeoise» (Report on youth in Luxembourg) - Ministry of Youth – 1998
« droits des enfants au Luxembourg» (Children’s rights in Luxembourg) - Ministry of the Family – 1996
« jeunes: droits et devoirs» (Young people: rights and obligations) - CIRA 1994
DEFINITION OF "SEPARATED CHILD"
1. ACCESS TO THE TERRITORY
2. IDENTIFICATION
3. APPOINTMENT OF GUARDIAN OR ADVISER
4. REGISTRATION AND DOCUMENTATION
5. AGE ASSESSMENT
6. DETENTION
7. RIGHT TO PARTICIPATE
8. FAMILY TRACING & CONTACT
9. FAMILY REUNIFICATION IN A EUROPEAN COUNTRY
ON SECOND PAGE
10. INTERIM CARE - HEALTH - EDUCATION AND TRAINING
11. REFUGEE DETERMINATION PROCESS
12. DURABLE SOLUTIONS
13. DATA COLLECTION
14. INTERNATIONAL INSTRUMENTS
15. CONSULTATION WITH SEPARATED YOUNG PEOPLE
16. POLITICAL LEVEL - SUPPORT FOR CHANGE
DEFINITION OF "SEPARATED CHILD" (SGP: A 2.1)
a) Please give details of the definition used in your country. Different agencies may apply different definitions. Please give details of this.
There is no official concept defining the idea of separated children, but all the partners agree to accept as a definition the fact that a separated child is a young person, whether a boy or a girl, aged under 18 years, who is alone in Luxembourg, without any (close) members of the family and without a guardian. An uncle may be considered a close relative, whereas a cousin would not usually be so considered.
b) Are children with older siblings over 18 years of age considered to be separated children? Please refer to Annex II of UNHCR Guidelines 1997.
In the absence of any legal text defining the concept of separated children, the practical situation must be considered. A child accompanied by a brother or sister over 18 years of age will not really be considered to be separated. However, it will be recognised that such children are not necessarily with a person who is legally responsible, or capable of looking after the child. If the brother or sister over the age of 18 is really older, he or she will no doubt be appointed as guardian. If they are still too young, another guardian may be appointed. In any case, the two will not be separated. The tendency would rather be not to consider these young people as separated children since they are not the only member of the family.
c) To what extent does this conform to the Statement?
There is a blurred area in practice and in people’s minds as to the recognition of separated children and in this sense, the application of the definition as given in the ‘Statement of Good Practice’ is not respected.
d) Are any changes needed? In relation to any first principle?
Luxembourg needs to integrate into its laws this concept as defined by the HCR concerning displaced separated children. This would provide a legal basis for work in favour of these young people to ensure that they are properly looked after and protected by means of a series of social services. It is difficult to make partners feel as sense of responsibility in areas where there is a legal void.
1. ACCESS TO THE TERRITORY (SGP:C1)
a) Please describe relevant law, policy and practice in your country.
Access to Luxembourg territory is governed by the law of 28 March 1972, amended on several occasions, most recently on 18 August 1995.
Access to the territory can be refused in three cases:
if a person does not have any identity papers
if a person poses a threat to the security, laws, health or order of the country
if a person does not have enough money to cover expenditure
With regard to asylum seekers, they have to indicate that they are requesting political asylum as soon as they arrive at the border. There have been cases where people have arrived with forged papers and only when this has been discovered have they requested asylum. Such people are then placed in detention centres owing to their lack of identity.
In the past there have been cases in which children seeking asylum or lacking identity papers have been placed in detention centres. Since the scandal three years ago involving an 11-year-old child, it would appear that this is no longer done with children, apart from exceptional cases. As soon as they arrive, children will have to explain why they have come to Luxembourg, and give details of how they got here. At this stage, they do not have any assistance, such as that of a lawyer, for example. The main problem that arises is that several children do not necessarily know what political asylum is. Their flight has often been organised by the family or, if they were already alone to start off with, they left because they no longer had anything at all. In this case they are very often considered economic refugees seeking to earn money to live and so that their families can live, or to be able to bring them in later on.
b) To what extent does this conform to the Statement? Please outline in brief.
It would appear that practices have improved over the past few years, and children have access to the territory. However, there are still a great many guarantees to be obtained to be certain that the action taken is in line with the statement.
1.c) Are any changes needed? In relation to any first principle?
Children must be welcomed irrespective of any identity papers which they may or may not be able to be present upon arrival. Their situation must be carefully studied and they must be appropriately advised and guided. This is why a lawyer or an NGO should be present from the outset. They must be granted a certain period of time before they are questioned. In any case, and as long as no criminal offence has been committed, they should not under any circumstances be placed in a detention centre.
1.d) Please also indicate whether your country has ‘carrier liability legislation’ whereby airlines, train and boat companies can be fined if they bring in someone without proper documentation. Is this applied to children and young people under the age of 18?
Although Luxembourg does have a law of this type, until now it has never been applied to anyone.
Trafficking (SGP. C1.2)
e) Are you aware of any children being trafficked for purposes of exploitation into your country? If so please give brief example(s) stating if possible the country of origin and nature of trafficking. Please also give examples where children have travelled along trafficking routes in order to apply for asylum.
This subject is often taboo and always confidential. To date, and to mention the most recent example, reference can be made to one case involving a young man from Georgia whose parents had passed away. He was all alone and was ‘taken in’ by an adult at Moscow station, who offered to take care of him. After a few weeks, the adult suggested that the boy, then aged 15 and a half, accompany him on a journey to Germany. When the crossed borders, the boy was to confirm that he was travelling with his father. The man had already obtained forged documents indicating that the boy was his son. The young man remembers having gone through Berlin, and then having driven for about three hours. Then he was left in a large house, handed over to other adults. They explained that now he was in Europe, he had to pay for the journey. As he did not have any money, he was locked in. For four months, he had to prostitute himself with ‘a lot of people who came from outside and spoke different languages’, as well as make pornographic films. There were other adolescents there, too. After about four months, the man from Moscow returned and fetched him. He was told that the journey had now been ‘paid for’ and that he was to be set free. From there he was taken to Luxembourg, where he was left in the city centre. He got by as best he could for several days before he realised that he could ask for political asylum. It would appear that there was a similar case about a year ago. The young man then left Luxembourg without any suitable follow-up being arranged. According to our investigations, the other separated children here at the moment are not reported to have been victims of or proposed for such practices, whether sexual or linked to work or other aspects.
Most of these children and young people come from the Balkans and have made the journey with the help of smugglers along fairly conventional lines, through Germany or Austria and Bosnia. Some have also come through Italy. However, in principle each time this has been organised thanks to the support of the family who funded the departure and entrusted the child to ‘smugglers who were known and therefore safer’. However, as far as we know this has never been done for a young girl alone, but always for boys.
f) Have any measures been taken by the state to combat trafficking of any sort?
There are national laws, a help unit and emergency numbers, and all the agreements with neighbouring countries. A priori nothing more specific than other countries in this precise area.
2. IDENTIFICATION (SGP: C2)
a) Please describe relevant law, policy and practice in your country.
All there is in Luxembourg is a practice concerning requests for asylum. Moreover, this does not make any distinction as regards children separated from adults. In fact, once on Luxembourg territory, the request for asylum is made under the same conditions as everywhere else. Sometimes, officials do not even discover that they are dealing with a child, or do not take any special measures. As soon as they arrive they are asked about the conditions of their journey and the route they took, their identity and the possibilities of proving this, and whether they are accompanied ‘by a member of the family’. The family relationship declared is usually believed. It is often later on that an NGO discovers that the child is not accompanied. However lately, since several NGOs have denounced this unsuitable practice, noting that sometimes no lawyer was appointed and the child remained totally isolated, without receiving schooling or anything, more appropriate follow-up seems to have been implemented and officials responsible for welcoming asylum seekers are becoming more aware.
b) To what extent does this conform to the Statement? Please outline in brief.
This area is gradually being organised but at the moment it is true that everything still needs to be done to make people realise that a separated child must be identified and given specific support immediately.
c) Are any changes needed? In relation to any first principle?
Yes, in particular as soon as a child is known to be alone, an NGO must be notified to guarantee that the child is supported through the various stages and that his or her basic rights are respected.
3. APPOINTMENT OF GUARDIAN OR ADVISER (SGP:C3)
a) Is a guardian or adviser appointed?
Lately, yes. Until recently, nobody appeared to what to take on the task. However, the Caritas refugee service offered to assume guardianship and therefore all separated children are sent here, that is those who arrive without any other member of their family. In fact, if children arrive together with an older sister or brother, or an uncle or aunt, then these people are given guardianship and the child will live with them.
b) If so what is their role?
It is still too early to define this, at least in legal terms. In any case, when a member of the family is appointed as the guardian, this is purely moral and a matter of good conscience, since in fact the person does not have the capacity to act. This is why the Caritas refugee service undertakes the same follow-up as that provided for those for whom it acts as guardian, that is it ensures that a lawyer is appointed, prepares the child for questioning and accompanies him or her to the interview, follows the development of his or her schooling and health requirements, and if possible reunites the child with the original family. An eye should also be kept on accommodation conditions, since at the moment no specific arrangements have been made and children are accommodated in the same way as adults, and finally some support should be given to disoriented children in some cases.
c) How soon after arrival are they normally appointed ?
It all depends whether the Minister informs the Judge immediately or the child is not spotted. If things go well right from the child’s arrival, guardianship may be arranged within a month. Otherwise, this will be done within thirty days or so from the time when the situation becomes known.
d) What kind of background and expertise do guardians/advisers have?
In Luxembourg there is only one social service which is appointed as guardian for separated and refugee children. In fact, it should perhaps be pointed out here that if a child does not request asylum, but is spotted, the judge will place him or her in a home and try to find the family. Sometimes these children have committed some offences and are placed in detention centres, then granted parole. Very often they end up running away, which ‘settles’ their situation. If everything goes smoothly, the child could, hypothetically, remain under protection in this way until he or she comes of age, when the Ministry will have to take a decision.
As regards refugee children, who account for most of them, the competent and voluntary service to take on the guardianship of these young people is the Caritas refugee service. This service has experienced teachers who follow up adolescents and are familiar with the problems of refugees and requests for asylum, as well as the entire procedure involved.
e) To what extent does this conform to the Statement? Please outline in brief.
In terms of the idea, the entire organisation seems to comply with the Statement. The margin of manoeuvre allowed to the guardian should be examined in practice. The Judge responsible for guardianship has already indicated that in any case he would not oppose any decision by the Justice department concerning the forced return of a refugee child, for example..
f) Are any changes are needed? In relation to any first principles?
Guarantees should be obtained, at least until these children come of age, to protect their interests. However, most of them are 17 when they arrive, and time passes quickly. Even when they are 18, their situation remains delicate and it would be good to be able to guarantee a special protected status for these separated young people until they reach the age of 20, for example.
4. REGISTRATION AND DOCUMENTATION (SGP: C4)
a) Please describe relevant law, policy and practice in your country.
The asylum procedure follows the same path as for an adult. Therefore no particular enquiry is conducted as regards these children, nor are any special ‘files’ reported to be kept, or statistics, as far as we are aware. Of course, in fact this is done in practice, but not officially by the body responsible for guardianship.
b) To what extent does this conform to the Statement? Please outline in brief.
Not at all.
c) Are any changes needed? In relation to any first principle?
These young people must be given a specific reception. A detailed but well organised interview must be conducted to define the real problem. However, care must be taken because children are often not in a position to understand the political situation in their country of origin and to establish the link with themselves, so they risk talking more about problems relating to the economic situation in general and their request for asylum will therefore be declared unfounded. How will they be taken care of in this case? They must be given a guarantee in advance and the support must be maintained until a proper solution has been found.
5. AGE ASSESSMENT (SGP:C5)
a) Please describe relevant law, policy and practice in your country.
This is more a matter of a practice whereby when children arrive in Luxembourg, and presuming that they cannot prove how old they are, they are given the benefit of the doubt. The age and date of birth they give are noted and they are considered children unless new elements prove otherwise.
b) To what extent does this conform to the Statement? Please outline in brief.
This practice is clearly in line with the recommendations laid down in the Statement.
c) Are any changes needed? In relation to any first principle?
No. So far the Ministry has not had recourse to medical analysis, although in some cases, doubts have been expressed as to the accuracy of the declarations made by some children regarding their age, and this would perhaps be a good way of overcoming doubts which end up weighing heavily on the examination of a file.
6. DETENTION (SGP:C6)
a) Please describe relevant law, policy and practice in your country.
In accordance with the laws of the country on the entry and residence of foreigners, children are liable to be imprisoned if they are not in possession of identity papers, or visas, or adequate means to cover their stay, and if they do not request asylum. In practice, and as far as we are aware, in particular since the scandal which arose three years ago when Luxembourg placed an eleven-year-old child in a detention centre, children are no longer imprisoned, unless they commit an offence. This poses a problem, as it would appear that several unaccompanied children have already entered the country and have not requested asylum, no doubt because they did not know they should, and have stolen to survive. They have been arrested by the police as a result, and the judge has ordered that they be sent to a detention centre. Officially they could be held in a special children’s detention centre until they come of age, but it appears that these children run away at the first opportunity. This situation has been witnessed in particular among gypsies, but it could arise with other children. If a child is found roaming the streets, he will be brought before the judge who will send him to a children’s home while deciding what solution to adopt. However in principle this type of case is not thought to have arisen so far. If a child arrives in the territory and requests asylum, then the procedure will be that described above.
b) To what extent does this conform to the Statement? Please outline in brief.
Current practice may be accepted as complying with the instructions.
c) Are any changes needed? In relation to any first principle?
There is a need to ensure that all children are reported, in particular to an NGO when the child is a foreigner, to make sure they are taken care of, which could prevent things going wrong.
7. RIGHT TO PARTICIPATE (SGP:C7)
a) Please describe relevant law, policy and practice in your country.
As far as their day-to-day lives are concerned (accommodation, living conditions, registration at school, etc.), the children have no say and have to accept what they are offered. Moreover, these conditions often do not take into account the fact that they are children.
They may also be interviewed, with or without a lawyer, although in practice it is assumed that a lawyer is present, but there are no official written requirements on this matter. The staff responsible for this questioning do not have any special training for this type of person. Nor is there any specifically designed procedure. Children may be questioned very soon after their arrival, or not until several months have passed. A positive or negative response may be given while they are still children or after they have come of age. There are no rules in this area. Since guardians have been appointed, they support the children during the interview and also make sure that a lawyer is appointed and is given time to prepare the file.
b) To what extent does this conform to the Statement? Please outline in brief.
Generally speaking, procedures conform in practice, but it would be good if things could be made official by a law and guardians could have genuine opportunities to intervene, particularly as regards daily living conditions.
c) Are any changes needed? In relation to any other first principle?
Yes, as requested above.
8. FAMILY TRACING & CONTACT (SGP: C8)
a) Please describe relevant law, policy and practice in your country.
There is no organised procedure in this field. Most of the children we have make contact with their families again as far as is possible a few weeks or days after their arrival. Others cannot do so because there are no telephone lines or the post does not arrive. However, we have the impression that some of them are afraid to make contact again, or quite simply do not want to for various reasons which will no doubt become clear in time. It is often the family who have organised the child’s departure, so there is reason to think that they will also have thought about ways of linking up again. The problem arises mainly for those who have lost their parents. We have had one case so far, and through other members of the family, and neighbours, it proved possible, six months later, to establish contact between the child and his parents. So far the services of bodies specialising more in this area have not been called in. There remains the case of children who say they are orphans and whose situation seems difficult to check.
b) To what extent does this conform to the Statement? Please outline in brief.
This corresponds to the expectations set out in the Statement, and this work carried out by the NGOs concerned means that they promote attempts to make contact again and to maintain these relations on a regular basis until children are reunited with their families if possible.
c) Are any changes needed? In relation to any first principle?
There is a need for better information about organisations working in the field of family reunification and existing measures to trace families, and also for local contacts with representatives responsible for linking families up again or making enquiries among families.
9. FAMILY REUNIFICATION IN A EUROPEAN COUNTRY (SGP:C9)
a) Please describe relevant law, policy and practice in your country.
We have not experienced such situations so far, but it may easily be imagined that Luxembourg would not under any circumstances oppose a family reunification in the interests of the child. If the parents are in another country, and provided that the third country is prepared to take in the child, Luxembourg would let the child go. If the parents were here, the child would no doubt be accepted.
b) Does this conform to the Statement? Please outline in brief.
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c) Are any changes needed? In relation to any first principles?
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